The ATT, the NRA, and the Politics of Treaty Ratification

Regular readers of Foreign Policy Blogs may be familiar with the U.N. Arms Trade Treaty (ATT). Trevor Keck and Joe Gurowsky, for instance, have touched on the topic in earlier posts. Having been approved by the General Assembly after two decades of advocacy, the treaty will open for signature on June 3. It will go into effect only after it has been signed and ratified by fifty countries. The treaty now enters the realm of ratification politics, that is, the domestic politics of each signatory state, including the United States, where ratification requires the approval of two-thirds of the Senate. There the treaty has already run up against resistance from the National Rifle Association (NRA) and many senators, mostly but not exclusively from the Republican Party. Thus, although approved by the General Assembly, the ATT is still not a done deal.

The Treaty

Unlike most aspects of international commerce, the arms trade has never been regulated by treaty. The objective of the ATT is to establish international standards aimed at reducing the flow of arms and ammunition to regimes likely to use them for violations of international humanitarian law or human rights law or for purposes of terrorism or organized crime. In effect, it takes the rules that the United States currently applies to its own arms exports and makes them the standard for other countries’ exports.

The ATT has already encountered U.S. domestic politics. The treaty was expected to be approved in July 2012, but on the last day of negotiations the United States announced that it could not support the text, and the process froze for eight months. The most likely explanation is that the Obama administration did not want the NRA and the Republicans to make an issue of “gun control” in the run-up to the 2012 presidential election.

What Is the NRA?

The NRA took the position that the treaty compromised the Second Amendment and would lead to further domestic regulation of arms because it encourages states to keep track of end users of imported arms, encourages states to pass domestic legislation to carry out the treaty’s provisions, and encourages exporters to take the gun laws of importers into account. According to the American Bar Association (ABA), however, the treaty does not affect U.S. gun owners’ rights nor does it require any further legislation beyond what already exists in this country. Julian Ku, a professor of international law who is quite sympathetic to gun owners’ rights, has concurred, noting that all the provisions that the NRA finds objectionable are merely “encouraged.” Of course, just because the NRA’s reasons do not coincide with expert opinion does not necessarily mean that its leaders do not believe them. Alternatively, it could be advancing certain policies for reasons other than those that it advances publicly. Just what interests does the NRA represent? That is not as simple a question as it seems.

As an organization, the NRA is an unusual hybrid, both an industry lobby and a mass-membership association. On the one hand, it receives millions of dollars in contributions from arms manufacturers and advocates on behalf of the arms industry. On the other hand, it has millions of members who pay dues. The membership base presumably gives it a greater degree of independence vis-à-vis its industry than most lobbies enjoy. (No doubt for that reason, the industry maintains a second, more conventional lobby, the National Shooting Sports Foundation (NSSF), which is headquartered in Newtown, Conn., of all places.) At the same time, its membership gives the association great sway vis-à-vis politicians, who are always wary of any large base of potentially mobilizable voters. Yet that does not necessarily mean that the NRA is an entirely free agent. It is constrained both by its membership base and by the nature of its relationship with the industry.

With regard to its membership, extrapolating from survey data, it appears that the NRA represents the views of its members fairly well on most issues, but its members are hardly a random sampling of the American public. They are not even representative of American gun owners as a whole. Rather, they are a self-selected group, gun owners of a certain ideological bent. NRA members, in particular, are much less amenable to certain gun control measures than other gun owners. This is not unusual for members of advocacy organizations, but it presumably constitutes a constraint on the flexibility of the association. Also, it is worth noting that on some issues, notably background checks, the NRA’s position is much more rigid than that of its members, suggesting that factors other than members’ preferences are also in play.

With regard to its relationship with arms manufacturers, many people argue that the NRA is simply an industry mouthpiece. In an unusual turn, Paul M. Barrett of Bloomberg Businessweek argues that it is the NRA that orders the industry around. This, he argues, is because the NRA is simultaneously intimidating and a great boon to sales. He points out that the industry and the NSSF tend to take less aggressive stances on issues, and that the industry turns to the NRA for guidance after events like the Newtown mass shooting of Dec. 14, 2012. In particular, he highlights an incident in 2000 when gun maker Smith & Wesson, together with an upstart trade association called the American Shooting Sports Council, negotiated a deal with the Clinton administration in order to put an end to mounting liability claims. In response, the NRA (1) organized a devastating boycott of Smith & Wesson, (2) got Smith & Wesson to withdraw from the deal it had made with Clinton, (3) got Congress to extinguish all the lawsuits against all the gun makers, obviating the need for a settlement, and (4) together with the other gun makers, shut down the American Shooting Sports Council. A chastened Smith & Wesson was then welcomed back into the fold.

While Barrett’s argument should not be dismissed casually, I do not think he captures the relationship properly. To me, this does not appear to be a case of one side issuing orders to another. Rather, it is a large, interactive, and synergistic system of more-or-less independent, more-or-less like-minded players, some of them inside formal organizations, working toward related goals — a sort of arms-lobby/arms-industry complex. Within this network, each entity has its role to play. The gun manufacturers make the guns and are the raison d’être for the whole complex. They also supply the NRA with funds for lobbying (but not all the funds, since the membership also contributes). For its part, the NRA stirs up the membership, increases the demand for guns, and acts to prevent Congress from restricting arms sales. (In addition to preventing restrictions, it has succeeded in getting Congress to put a host of active restraints on the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) and also to prevent gun regulation from being transferred to any agency other than the ATF; the NRA then complains that the ATF is not doing its job whenever some tragedy or scandal occurs.) The NRA, by the public positions that it takes, also makes the arms manufacturers and the NSSF look reasonable by comparison. (Groups such as the Gun Owners of America, a rival association that derides the NRA as collaborationist, perform a similar service for it.) These roles are not necessarily consciously assigned to the different elements, but nonetheless, they may have evolved to perform useful functions for the overall gun-lobbying network. In this reading, an independent NRA did not put Smith & Wesson in its place; rather, a complex system disciplined an errant member; this appears more clearly when you look at steps 3 and 4 in the process described above, and not just at steps 1 and 2. It may also work the other way around, as when the NRA — as Barrett describes it — tried to reach out for compromise in the late 1990s, after the shootings at  Columbine High School, by temporarily endorsing gun-free schools and FBI background checks for private sales and gun shows. The move brought opprobrium upon the NRA from members and from groups to its right. It has not been repeated.

This suggests that, powerful as it is, the NRA faces constraints on its freedom of action. If it were a truly independent entity, it might be free to cut a deal on occasion. The need to operate within a politically circumscribed field of options, however, lessens the likelihood that the NRA’s offers will go beyond its usual established norms.

The Senate

In the U.S. Senate, the treaty faces a number of hurdles. Chief among these are: (1) the structure of the Senate, (2) the current Republican strategy to deny the administration any victories on any subject, (3) the Republicans’ negative attitude toward treaties, and (4) the politics of interest groups, and (5) Republican fears of being challenged in primary elections.

First, most people are aware of the structure of the Senate, but they do not always consider the implications. Unlike the House, in which the size of each state’s delegation accords to the size of the state’s population, the Senate has two senators from each state. This leads to a systematic overrepresentation of small-population states. Wyoming, the smallest state in terms of population, has 564 thousand people and one representative in the House; California, the largest, has 37.254 million people and 53 representatives in the House. Both, however, have equal weight in the Senate. The consequences of this may vary, depending on the issue at hand. With regard to gun control, advocates tend to be concentrated in a small number of large states, while opponents are distributed in a large number of small states. Even Democrats elected from small, rural states consider it politically risky to support gun control. A poll conducted in the autumn of 2012, asking a rather vague question regarding the regulation of guns, found that gun control supporters exceeded 50 percent of the population in only 13 states. Those states accounted for 45 percent of the country’s population but, of course, only 26 percent of the votes in the Senate. The Senate, therefore, has a systematic bias against gun control. (That bias may be further reinforced by a recently discovered tendency of politicians to exaggerate the conservatism of their constituents. The tendency is especially strong among conservative politicians, but it exists among liberals as well.) This bias in not necessarily insurmountable, but it adds to the hurdles to be overcome.

Second, the politics of the Senate has been evolving, and the current Republicans have been intent on obstructing the Democratic administration. The filibuster, which has grown increasingly common over the past 20 years, became the norm when Barack Obama was sworn in as president in 2009. Since then, virtually everything is filibustered. That is not to say that nothing passes—the filibuster does not always succeed in killing a bill and it is not always expected to do so—but once again it creates a higher hurdle.

The form of the filibuster has changed. Once upon a time, if a senator wanted to kill a bill by filibuster, he had to hold the floor and speak without interruption, obstructing the Senate’s business until the other side gave in, but that proved too disruptive of the Senate’s other work. So in the 1970s the rules were changed; now all a senator has to do to filibuster a bill is to announce the intention to do so. A cloture vote of three-fifths (reduced in the 1970s from two-thirds) is required to overcome a filibuster, so although a simple majority (51 if all senators are voting) remains the requirement for passing a bill in the Senate, 60 votes are needed “to end debate” and permit the actual vote to take place if any senator insists on it. Since there are currently 55 Democrats in the Senate, no bill can pass without some degree of Republican acquiescence, and many bills that presumably would pass never come to a vote. Although the Senate likes to think of itself as the world’s greatest deliberative body, a senator need give no reason whatsoever, let alone a rational argument, for stopping a bill. (Note, the Constitution makes no mention of filibusters or cloture, but it does say that each house of Congress can make its own rules and this is what senators have settled on.)

The prevalence of filibusters is an indication of the degree of divisiveness and paralysis in the Senate today. Treaties, however, face an even higher standard because the Constitution requires a two-thirds majority in the Senate (67 votes) for ratification. Thus at least a dozen Republicans must be brought on board. (No vote is required in the House for treaty ratification, although some treaties may also require implementing legislation that would have to pass through both houses.)

The Republicans’ strategy to oppose all administrative initiatives may be weakening in Obama’s second term, in large part to slough off the party’s growing reputation for being dysfunctional. There have been cooperative, bipartisan efforts in the Senate to address immigration, for example, but this is tied to the GOP’s perceived need to shore up its support among Hispanic voters and perhaps to business demands for cheap labor. A bipartisan effort to pass limited domestic gun-control legislation in the wake of the Newtown shootings, on the other hand, showed some promise but ultimately went down in flames, which is to say it garnered a majority of votes but not a three-fifths majority.

Third, Republican opposition to treaties in general, is relatively new. The Bush administration, working with a Republican Congress for its first six years in office, signed and ratified 163 treaties overall, compared with 9 so far for the Obama administration. Still, signs of this opposition are now hard to deny. Last December the Senate killed the Convention on the Rights of Persons with Disabilities (with a vote of 61 in favor and 38 opposed), which had been negotiated by the Bush administration and was based on the Americans with Disabilities Act, championed by former senator Bob Dole (R-Kans.). Like the ATT, the Disabilities Treaty hoped to take the U.S. standard and make it the model for the rest of the world. Yet John B. Bellinger III, a legal counsel in the State Department during the Bush administration, acknowledged that conservative Republicans “had mischaracterized the treaty” during the debate. He also noted that “an increasing number of Republicans had come to view treaties in general (especially multilateral ones) as liberal conspiracies to hand over American sovereignty to international authorities.” While some treaties may infringements on sovereignty or trade-offs in return for whatever benefit is bestowed, and arguments for and against these trade-offs could be made, the fact is that the Disabilities Treaty (like the ATT) did not infringe upon the sovereignty of the United States in any way or grant authority over the United States to any international body on any issue. This attitude, naturally, will make ratification difficult.

Fourth, like other congressional politics, the politics of treaty ratification involves the asymmetric involvement of political interest groups. We know that bills that perform very well in opinion polls can still be easily defeated in certain circumstances, particularly if they are opposed by a group that is well organized and intensely interested. For example, if the costs associated with a bill are concentrated in a narrow, well-organized group while the benefits, although substantial, are diffused thinly across a very portion of the population, the opponents are more likely to mobilize political backing for their side. In this case, although the NRA represents a minority of gun owners, who are themselves a minority of the population, it is extremely well organized and well financed and generally faces few, if any, comparably endowed adversaries. It also seems to benefit from an aura that exaggerates its effectiveness. Actually, in the 2012 elections, the NRA-endorsed candidates lost seven of the eight Senate races on which the association spent more than $100,000 — presumably the races it considered most important — and it lost the presidency as well. Within the Senate, however, the perception of its effectiveness in mobilizing voters, often measured through its ability to get members to contact their senators on issues of importance to it, is more important than the reality.

Fifth, Republican discipline is also reinforced by the fear of being “primaried,” that is, challenged in a primary by a candidate who claims to be ideologically purer than the incumbent. This is especially if the issue at hand relates—or can be made to appear to relate — to an issue like gun rights. Most Republicans (and Democrats, for that matter) now represent “safe seats” — states or districts that reliably elect a candidate from the same party every election. They remain vulnerable, however, in the party primary. A competitive general election often forces a candidate to moderate his or her views in order to appeal to as broad a slice of the electorate as possible, but party primaries tend to attract relatively few voters and those voters tend to be among the most ideological members of the party. This puts constant pressure on Republican incumbents to be as rigid and as ideologically pure as they can, even those who actually understand or even sympathize with the other side’s arguments on a given issue.

There is no natural reason that Democrats should not face a comparable pressure to take liberal views, and in cases they do, but empirically in recent years the Republicans have suffered more from this particular political phenomenon. Part of this may be explained by the rise in 2009 of the Tea Party. The Republican Party quickly co-opted this new political movement but then found itself bound to very enthusiastic activists who are often not only extremely conservative, but also disdainful of compromise and unsophisticated on the substance of policy.

Following on the notions of asymmetric mobilization and the unsophisticated positions sometimes espoused by partisans, it is worth noting that the Disabilities Treaty showed that the “costs” necessary to mobilize votes against a treaty can be imaginary. Recall Bellinger’s comment that the treaty had been “mischaracterized.” A number of Republicans who had promised to support the treaty turned against it after it was denounced by an obscure group called the Home School Legal Defense Fund. This group had decided, on the basis of no known evidence, that the treaty would be “dangerous” for parents who taught disabled children at home. (The leader of this particular group, although a Republican himself, evidently liked to be viewed as somewhat above party politics, referring to the Democrats and the Republicans as “the evil party” and “the stupid party,” respectively.) Before long, Sen. James Inhofe (R-Okla.) and Sen. Jim DeMint (R-S.C.), both Tea Party favorites, were asserting that the treaty “calls for government agents to supersede the authority of parents of disabled children and even covers abortion.” None of this had any basis in reality, but for many senators it was easier to vote against the treaty than to try to explain international law to skeptical, ideologically driven primary voters. The same approach can be expected for the ATT. The NRA has already argued that the treaty could lead to a federal registry of gun owners and that such a registry could lead to the confiscation of guns. There is nothing in the treaty to support this, but then there was nothing in the domestic gun control bill to support it either, and the same argument worked to stop that.

The Puzzle: Why Does the NRA Oppose the ATT?

Ratification of the ATT will be a difficult task. Already on March 23, before the treaty was even completed, the Senate voted 53-46 to oppose it. The vote was purely symbolic, a nonbinding amendment to the Senate budget resolution, which is a nonbinding bill in any event. Some senators might be persuaded to vote differently on the treaty itself. Indeed, given the amendment’s nonbinding nature, it is possible that some voted against it just in case it becomes politically convenient later to have a record of anti-gun-control votes. Still, it is not a good sign for the treaty.

The question remains, however: Just why is the NRA so opposed to the treaty? The United States’ main purpose in ratifying the treaty is to encourage other countries to do so, thus accepting our export standards as their own. At the insistence of the United States, the treaty explicitly states that it does not affect any country’s domestic laws or constitutional rights regarding gun ownership. It should not affect U.S. domestic gun sales or the exports of U.S. arms manufacturers. It does call on exporting countries to take the domestic gun laws of importers into account when licensing gun exports, but the United States has some of the loosest laws around, so that is unlikely to be much of a constraint on the availability of imported arms for U.S. buyers. If other arms-exporting countries ratify it, thus putting limits on who they can sell to, it could actually improve the competitiveness of U.S. exporters.

I can think of two possible reasons for the resistance, keeping in mind that this is speculation. One is more ideological, and the other is more practical.

The more ideological explanation is that NRA leaders actually believe the “slippery slope” arguments they so often make. They can permit the other side no victories because even small, unimportant victories could begin a process of change that would spiral out of control. Perhaps they believe that a loss would damage the aura of invincibility that has helped make the association so effective. Of course, the NRA has suffered losses from time to time, and it seems to have recovered from them pretty well, but this could still be a concern for leaders. This argument should not be dismissed lightly. Psychologists have shown that if people repeat something often enough—and they are not being compelled to repeat it against their will—they often end up believing it, even if they did not believe it in the beginning. And for all we know, they may have believed it from the beginning.

The more practical explanation is that even if the treaty requires no changes to current U.S. law, it presumably would require the maintenance of current U.S. law. If the NRA and/or gun manufacturers are dissatisfied with the current situation, they may prefer to prevent treaty ratification in order to push for looser export laws in the future. Indeed, there are currently moves under way to loosen arms-export controls by transferring the jurisdiction over some of them from the State Department to the more business-friendly Department of Commerce. That could explain their current opposition, while the need to mobilize hunters and self-defense enthusiasts to contact their senators could explain their preference for using other arguments when they make their case in public.